Question: How did you become involved in examining the question of torture?
Alan Dershowitz: I looked around and I said, We’re torturing people. We use torture. I think that’s wrong. I’m personally opposed to torture, but we’re using it. So I said, “If we’re going to use it, we need a jurisprudence of torture.”
“Oh my god! A jurisprudence of torture? How can you say that? You’re a monster. You’re Torquemada.”
No. I’m trying to stop torture. And the way to stop torture is to say, “All right. If you think you have to use moderate forms of physical pressure in the extraordinary case of a ticking bomb terrorist who knows where a nuclear bomb is in the city of New York, all right. Create an exception for that. But limit it. Indicate.”
And people say, “No, no, no. We don’t want that. We’d rather have the President, or the Vice President, or some people on the ground do it on their own." Just don’t ask, don’t tell. A wink and a nod.
That’s not my way. My way is always to have the rule of law govern everything that we do, whether it be torture; whether it be execution; whether it be race-based affirmative action; whether it be censorship on the Internet.
Things that I oppose, I still want to have a jurisprudence. I oppose the death penalty, but can you image having a death penalty without a jurisprudence to constrain it?
Or take the problem of an airplane flying toward a building with lots of people in it. And we’re pretty sure the airplane has been high jacked but we’re not positive. Somebody has to make a decision to shoot down that airplane and kill the 300 people on it who might not be crashing it, who might be crashing it. We can’t just leave that to the person on the ground. We have to have an advanced jurisprudence to figure out when we can shoot that airplane down and when we can’t.
Everything needs a jurisprudence. That’s my mantra.
And if there’s ever been a contribution that I’ve made, it’s the contribution of creating a rule of law, creating a jurisprudence for everything we do, no exceptions.
Recorded On: June 12, 2007
Discuss
Rodrigo Obregon on January 7, 2008, 2:46 PM
I agree
Ron Sipherd on January 7, 2008, 7:24 PM
Without disagreeing with Pr. Dershowitz, I am concerned about allowing torture under the "minutes till he blows up New York" exception. It seems to me the exception could devour the rule if good-faith mistakes by the government are allowed, since then they will always be claimed. I prefer no exceptions written into law, with special circumstances used in mitigation of sentence.
Rodrigo Obregon on January 7, 2008, 7:46 PM
I agree
Ron Sipherd on January 8, 2008, 12:24 AM
Without disagreeing with Pr. Dershowitz, I am concerned about allowing torture under the “minutes till he blows up New York” exception. It seems to me the exception could devour the rule if good-faith mistakes by the government are allowed, since then they will always be claimed. I prefer no exceptions written into law, with special circumstances used in mitigation of sentence.
Steven Devijver on January 8, 2008, 12:53 AM
At the end of the second world war, while faced with the most extreme scale of torture and genocide ever witnessed, the United States insisted to give suspected war criminals a fair trial instead of just executing them.
Today this upholding of human rights is lost. It makes our world a worse place. The United States has shifted from a beacon of hope to a source of terror and injustice.
Steven Devijver on January 8, 2008, 12:53 AM
Citizens of the United States may be under-estimating how their country has been one of the very few sources of hope for people around the world hope in this last century.
Steven Devijver on January 8, 2008, 5:53 AM
At the end of the second world war, while faced with the most extreme scale of torture and genocide ever witnessed, the United States insisted to give suspected war criminals a fair trial instead of just executing them.
Today this upholding of human rights is lost. It makes our world a worse place. The United States has shifted from a beacon of hope to a source of terror and injustice.
Steven Devijver on January 8, 2008, 5:53 AM
Citizens of the United States may be under-estimating how their country has been one of the very few sources of hope for people around the world hope in this last century.
Graham pollard on January 11, 2008, 11:50 PM
The USA has lost all of its reputation for Human Rights
Graham pollard on January 12, 2008, 4:50 AM
The USA has lost all of its reputation for Human Rights
Tim Ray on January 12, 2008, 5:06 PM
I would rather be water boarding…..remember Lawrence of Arabia…take no prisoners….works for me
Tim Ray on January 12, 2008, 10:06 PM
I would rather be water boarding…..remember Lawrence of Arabia…take no prisoners….works for me
Steve NoBrainer on January 14, 2008, 3:08 AM
This intellectual tolerance of current US state-sponsored torture is disgusting. Does the Professor also agree with the current state-sponsored kidnap and detention without trial on the basis that the end justifies the means? See the Wikipedia article on utilitarianism: http://en.wikipedia.org/wiki/Utilitarianism Where does this way of thinking end? I would argue that it eventually results in Nazi gas chambers and mass extermination. He is also naïve about the success of torture. Would an atomic suicide bomber really worry about a couple of hours of torture before ascension to paradise?
Steve NoBrainer on January 14, 2008, 8:08 AM
This intellectual tolerance of current US state-sponsored torture is disgusting. Does the Professor also agree with the current state-sponsored kidnap and detention without trial on the basis that the end justifies the means? See the Wikipedia article on utilitarianism: http://en.wikipedia.org/wiki/Utilitarianism Where does this way of thinking end? I would argue that it eventually results in Nazi gas chambers and mass extermination. He is also na
Tom McCloughan on January 15, 2008, 7:30 PM
The grey area over the arguement of torture appears to center on the degree of immediate threat and the necessity of vital information, the definition of which appear to be subjective and ill defined at best. As to the credibility of the information derived from torture it is unequivocal at best – and with this should not be used as credible. Since it is not unequivocal it should not be utilized as a stratagy to base actions upon. If this is the case then the acts themselves have to be viewed as both illegal and immoral.
Tom McCloughan on January 15, 2008, 7:34 PM
My apologies board members, I meant to write: "As to the credibility of the information derived from torture it is equivocal at best……"
Tom McCloughan on January 16, 2008, 12:30 AM
The grey area over the arguement of torture appears to center on the degree of immediate threat and the necessity of vital information, the definition of which appear to be subjective and ill defined at best. As to the credibility of the information derived from torture it is unequivocal at best – and with this should not be used as credible. Since it is not unequivocal it should not be utilized as a stratagy to base actions upon. If this is the case then the acts themselves have to be viewed as both illegal and immoral.
Tom McCloughan on January 16, 2008, 12:34 AM
My apologies board members, I meant to write: “As to the credibility of the information derived from torture it is equivocal at best……”
Matt MCKinlay on March 16, 2008, 7:17 PM
"if you torture a man long enough, he'll tell you he started the Boston fire, but that doesn't necessarily make it F**** so" Reservoir Dogs
Simulated drowning sounds like torture to me, I certainly wouldn't want it used on me or anyone I know. I think the most damning example I know of, is that the Japanese used waterboarding on Americans during WWII, and the Japanese that carried it out were tried and executed for torture. Yet waterboarding now is ok and not really torture, it's just aggressive interviewing.
I can understand where Mr Dershowitz is coming from, that if it is going to be sanctioned by the government then the least the Law society can do is put forward parameters and guidelines for its use, just like the death penalty. Otherwise it is open to abuse.
Unfortunately, I think the abuse is already there. When fighting monsters it is hard not to become a monster yourself. And, even if the opposition has guns and might shoot us, we should continue to maintain the moral high ground rather than seeking to outdo each other in atrocities.
Matt MCKinlay on March 16, 2008, 11:17 PM
“if you torture a man long enough, he’ll tell you he started the Boston fire, but that doesn’t necessarily make it F**** so” Reservoir Dogs
Simulated drowning sounds like torture to me, I certainly wouldn’t want it used on me or anyone I know. I think the most damning example I know of, is that the Japanese used waterboarding on Americans during WWII, and the Japanese that carried it out were tried and executed for torture. Yet waterboarding now is ok and not really torture, it’s just aggressive interviewing.
I can understand where Mr Dershowitz is coming from, that if it is going to be sanctioned by the government then the least the Law society can do is put forward parameters and guidelines for its use, just like the death penalty. Otherwise it is open to abuse.
Unfortunately, I think the abuse is already there. When fighting monsters it is hard not to become a monster yourself. And, even if the opposition has guns and might shoot us, we should continue to maintain the moral high ground rather than seeking to outdo each other in atrocities.
Peter Bradley on April 24, 2009, 5:44 PM
I believe that the Constitution of the United States has cancer.
My understanding of cancer is that it usually takes decades of exposure to toxins before cells become cancerous.
Today we are faced with a cancer of the Constitution.
It may have started with two cancer cells, Cheney and Rumsfeld
Did they get their start in the Nixon administration? I think so. I think they believed, and still believe, that Nixon was right and that he was above the law while he was president and that a unitary executive branch is best for this country.
They first appear in public, and with power under Gerald Ford. Gerald Ford pardoned Richard Nixon. The cancer Nixon started was not thoroughly killed by irradiation of the bright light of public scrutiny. Cheney and Rumsfeld and crew were allowed to continue to silently grow and infect others around them. The tumor was regrowing.
The cancer grows, quietly and becomes more powerful
Through Reagan and Bush, 41. Through Iran-Contra where the United States hired people like Eugene Hassenfus to run cocaine into black neighborhoods and to sell weapons to Iran to raise money to fund an extra-constitutional war.
A temporary seeming remission during Clinton. But the military continued to privatize their support services. Now, instead of having Army cooks, we subcontract the jobs out to Halliburton and pay Blackwater (I mean Xi) to guard the civilians. If we had that arrangement during the Battle of the Bulge, the Germans would have won their Argonne offensive because then e had an army that could fight in depth. We had cooks who were soldiers first.
Then the full symptomatic eruption happened during Bush 43. Just the right mix of carcinogens and precancerous cells got mixed together. The body of this nation was subjected to a terrible shock. We all (most of us) bought the big lie. We could not see that giving George Bush – and, by extension, the people who had their hand up his butt like a sock puppet – Giving George Bush war powers was no different from giving any other redneck an ax handle, a six pack and a pick-up truck.
Our Constitution has been exposed to eight years of rapid and unimpeded growth of Constitutional Cancer. The tumor has not yet killed the Constitution.
Smoking causes cancer, right? Stopping smoking is a preventative method of avoiding the disease.
But once cancer is present, it continues to grow even if the victim stops smoking.
Now, by pardoning torturers and justifiers of torture, and orderers of torture and promising to just not ever do it again, the country is trying to cure cancer by just stopping smoking. We pretend that the the concept of the Unitary Executive is behind us. We say that we will no longer torture. We do not repudiate unwarranted invasions into the private lives of our citizens. We seek to protect some of the people, the CIA civilians, who tortured in the name of The United States of America. Yet we do not pardon the military people who, acting under the very same legal determinations, followed their orders in military prisons and were scapegoated and themselves sent to military prisons.
Once the disease starts, appeasment and promising to change do not rid the body of the Constitution of the cancer. If those things worked then Gerald Ford’s pardon would have worked – and it didn’t.
The patient may get a few more years of life if surgeons cut out the big, easy to get pieces But the patient will still die of the cancer because it is still there and will grow back.
It may even metastasize and spread to other parts of the body.
Sometimes a person with lung cancer dies because the cancer spreads to the liver or the brain and those tumors kill the person first.
Is this what we want of our Constitution? Is this what we want for our country?
I for one do not.
Therefore – I am sending this to my president, my senators, my representative and several various public media outlets.
I am imploring those with the power, I’m begging, I’m asking nice, I’m saying Please
“Please, If we are truly a nation of law (and we are a nation of law because we legitimize our government through the set of law we refer to as the Constitution) independently and publicly investigate every abuse of power, real or imagined, that makes up the legacy of the Bush Cheney Administration.
This will not be so hard to do. PBS has already a half dozen programs outlining abuse. Even the Comedy channel has researched and developed numerous “news” stories.
Surely Congress, and the Justice Department can do as well, if not better.
My pledge. Just as Gerald Ford’s putting the past behind us by pardoning Richard Nixon cost him my vote in 1976, not investigating torture and other abuses of power and office between the years of 2000 and 2008 will cost President Obama my vote in 2012.
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